Urbis JHD v Pittwater Council [2004] NSWLEC 397

Land and Environment Court of New South Wales

CITATION : Urbis JHD v Pittwater Council [2004] NSWLEC 397 APPLICANT Urbis JHD PARTIES : RESPONDENT Pittwater Council FILE NUMBER(S) : 10347 of 2004 CORAM: Talbot J KEY ISSUES: Costs :- no order as to costs following filing of notice of discontinuance LEGISLATION CITED: Land and Environment Court Rules 1996, Pt 11, r 5, Pt 16 CASES CITED: DATES OF HEARING: 22/06/2004 EX TEMPORE 06/22/2004 JUDGMENT DATE :

APPLICANT Mr J B Hones (Solicitor) SOLICITORS Hones LAwyers LEGAL REPRESENTATIVES: RESPONDENT Ms E S Duenow (Solicitor) SOLICITORS Mallesons Stephen Jaques

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10347 of 2004

Talbot J

22 June 2004 Urbis JHD Applicant v Pittwater Council Respondent Judgment

Introduction 1 HIS HONOUR: The notice of motion before the Court has been filed by Pittwater Council ("the council"). The council seeks an order that the applicant pay the respondent's costs of and incidental to the proceedings, following the filing of a Notice of Discontinuance by the applicant. 2 The basis upon which the respondent seeks costs is that, following the commencement of the proceedings by the subject development class 1 application but before the application was served, the council determined the application by refusal of consent and gave its reasons. At that point, the respondent says, the applicant should have been aware that the council proposed to raise fundamental issues in opposition to the grant of consent. Subsequently, a Statement of Issues was prepared. Consequent upon the receipt of that Statement of Issues, the applicant discontinued. Mr Hones, who appears for the applicant, identifies a number of issues in the Statement of Issues, which were not, he says, previously raised by the reasons given by the council in the Notice of Determination by refusal of consent. 3 There is evidence that the applicant perceived some difficulty in justifying the development having regard to the slope of the land. That the position had, I infer, been misjudged as a consequence of bad advice. In that respect, the Notice of Determination and the Statement of Issues both contain an issue relating to gradient together with an assertion that there were insufficient levels provided on the drawings to determine whether the proposed gradient was acceptable. However, the Statement of Issues does raise a significant new issue in relation to endangered ecological species, either on the basis that they belong to a particular community occurring on the site or that the land comprises habitat for vulnerable and local significant species or even that there is an existing wildlife corridor. 4 The Land and Environment Court Rules 1996 ("the LEC Rules"), namely Pt 11 r 5 gives the Court a discretion to order a discontinuing party to pay the costs of any party against whom the discontinued claim was brought and who does not consent to the discontinuance. There is a further discretion pursuant to Pt 16 of the LEC Rules in class 1 matters which provides that no order for the payment of costs will be made in proceedings to which the rule applies unless the Court considers the making of a costs order is, in the circumstances of the particular case, fair and reasonable. 5 I think that it would be against the interests of a party seeking to settle a class 1 litigation before it goes too far where, upon receipt of a Statement of Issues, the party realises that there are matters that have not previously been brought to its attention which on balance could tip the scales and they are be penalised for filing a Notice of Discontinuance at that point. Nevertheless, each matter must be determined according to its own circumstances. 6 I am, in this case, satisfied that it was reasonable for the applicant to commence the proceedings in circumstances where the time for appeal on the ground of deemed refusal had well and truly expired. The time was substantial. Having commenced the proceedings, the applicant was entitled to have the opportunity to receive a Statement of Issues and, in my view, it was reasonable for the applicant to thereafter discontinue after it became fully appraised of what the council intended to argue at the hearing. 7 In the circumstances, the applicant's steps in firstly, commencing the proceedings and secondly, discontinuing the proceedings were reasonable. That is not to say, of course, that the council's steps in raising additional issues were unreasonable. However, there is an underlying thread that the Court should have regard to in exercising its discretion in class 1 matters where the issues to be resolved are entirely based upon merit, namely parties should feel free to raise issues of merit but nevertheless they should not be forced to go on with the matter and proceed to a hearing notwithstanding that there is little prospect of success. 8 On balance and in the circumstances, I am of the view that there should be no order as to costs. Accordingly, the notice of motion is dismissed. 9 The decisions by Lloyd J and others that a notice of motion in relation to costs was not covered by the old Practice Direction need to be re-addressed having regard to the recent amendment to Pt 16. I am inclined to the view at this stage that the new rule contemplates that class 1 proceedings in their entirety are covered by it. In any event, after having regard to the whole of the circumstances, in this case I think it is reasonable that the parties pay their own costs in relation to the notice of motion.